Jammu and Kashmir Public Safety Act, 1978
Act No. VI of 1978 - statutory provisions on preventive detention, prohibited places, public order, Advisory Board review, detention periods, revocation and related matters in the Union territory of Jammu and Kashmir.
Whereas it is necessary in the interest of the security of the Union territory of Jammu and Kashmir and
public order to make law providing for the measures hereinafter appearing.
Now, therefore, it is enacted by the Union territory of Jammu and Kashmir Legislature in
the Twenty-ninth Year of the Republic of India as follows:-
Chapter I Preliminary
Section 1 - Short title and extent
(1) This Act may be called the Jammu and Kashmir Public Safety Act, 1978.
(2) It extends to the whole of the Union territory of Jammu and Kashmir.
Section 2 - Definitions
In this Act, unless there is anything repugnant in the subject or context-
(1) "the Code" means the Code of Criminal Procedure, 1973 (2 of 1974);
(2) "notified" and "notification" mean notified and notification respectively in the Government Gazette.
CHAPTER II ACCESS TO CERTAIN PREMlSES AND AREAS
Section 3 - Prohibited places
(1)If as respects any place the Government considers it necessary or
expedient that special precautions should be taken to prevent the entry of
unauthorised persons, the Government may, by notified order, declare that
place to be a prohibited place.
(2)No person shall, without the permission of the Government or the
authority specified by the Government, enter, or be on or in, or pass over,
or loiter in the vicinity of, any prohibited place.
(3)Where in pursuance of sub-section (2) any person is granted permission to
enter, or to be on or in, or to pass over, a prohibited place, that person
shall, while acting under such permission comply with such orders for
regulating his conduct as may he given by the Government or the authority
specified by the Government.
(4)Any Police Officer, or any other person authorised in this behalf by the
Government, may search any person entering or seeking to enter or being on
or in, or leaving a prohibited place, and any vehicle, aircraft or article
brought in by such person, and may, for the purpose of the search, detain
such person, vehicle, aircraft and article.
Provided that no female shall be searched in pursuance of this sub- section
except by a female.
(5)If any person is in a prohibited place in contravention of this section,
then, without prejudice to any other proceedings which may be taken against
him, he may be removed therefrom by any Police Officer not below the rank of
a Sub Inspector or by any other person authorised in this behalf by the
Government.
(6)If any person is in a prohibited place in contravention of any of the
provisions of this section he shall be punishable with imprisonment for a
term which may extend to one month, or with fine, or with both.
Section 4 - Protected areas
(1)If the Government considers it necessary or expedient in the interests of
the defence or security of the Union territory of Jammu and Kashmir to regulate the entry of person into
any area, it may, by a notified order declare the area to be a protected
area, and thereupon, for so long as the order is in force, such area shall
be protected area for the purpose of this Act.
(2)The Government or the authority specified by the Government may regulate
the entry of any person into a protected area.
(3)If any person is in a protected area in contravention of the provisions
of any order passed under thin section then, without prejudice to any other
proceedings which may be taken against him, he may be removed therefrom by
or under the direction of any police officer not below the rank of a
Sub-Inspector.
(4)If any person is in a protected area in contravention of any of
provisions of this section, he shall be punishable with imprisonment for a
term which may extend to two months, or with fine, or with both.
Section 5 - Forcing or evading a guard
Any person who effects or attempts to effect entry into a prohibited place
or a protected area after taking precautions to conceal his entry or
attempted entry from any person posted for the purpose of protecting or of
preventing or controlling access to such place or area shall be punishable
with imprisonment for term which may extend to three months, or with fine,
or with both
Chapter Iii Maintenance Of Communal And Regional Harmony
Section 6 - Power to prohibit circulation within the Union territory of Jammu and Kashmir or entry into the Union territory of Jammu and Kashmir of certain documents
(1)The Government, or any authority authorised by it in this behalf, if
satisfied that such action is necessary for the purposes of preventing or
combating any activity prejudicial to the maintenance `of communal or
sectarian, or regional harmony effecting or likely to affect public order,
may, by notified order, regulate or restrict the circulation within the
State, or prohibit or restrict the importation into the Union territory of Jammu and Kashmir, of any
document:
Provided that no such order shall remain in force for more than three months
from the making thereof unless before the expiry of such period, and in case
the High Court does not otherwise direct, the Government, by an order made
in the like manner, extend it by any period not exceeding three months at a
time as it thinks fit, so however, that the total period of. the original
order does not exceed one year
Provided further that a person aggrieved by such order may, within ten days
of the passing thereof, make a representation to the Government which may,
on consideration, confirm, modify or rescind the order within 21 days of the
making of the representations, after giving the aggrieved party an
opportunity of being heard
Provided also that in case the representation is rejected by the Government,
the aggrieved person may within a period of two months from the date of the
order rejecting the representation, apply to the High Court to set aside the
order. Every such application shall be heard and determined by a Special
Bench of the High Court composed of three Judges.
(2)Any person who contravenes an order made under this section shall be
punishable with imprisonment for a term which may extend to three months or
with fine or with both.
(3)In the event of disobedience of an order made under sub-section (1), the
Government or the authority issuing the order, may without prejudice to the
penalty to which the person guilty of the disobedience is liable under
sub-section (2), order the seizure of all copies of, any such document.
Section 7 of Jammu and Kashmir Public Safety Act, 1978 - Removal of doubts
For the removal of doubts it is hereby declared that the restrictions
imposed by section 6 on the rights conferred by clause (1) of Article 19 of
the Constitution of India shall he deemed to be reasonable restrictions.
Chapter Iv Power To Make Orders Detaining Certain Persons
Section 8 - Detention of certain persons
(1) The Government may-
(a) if satisfied with respect to any person that, with a view to preventing him from acting in any manner prejudicial to-
(i) the security of the Union territory of Jammu and Kashmir or the maintenance of public order; or
(ii) omitted;
(a-1) if satisfied with respect to any person that, with a view to preventing him from-
(i) smuggling timber or liquor; or
(ii) abetting the smuggling of timber or liquor; or
(iii) engaging in transporting or concealing or keeping smuggled timber; or
(iv) dealing in smuggled timber otherwise than by engaging in transporting or concealing or keeping smuggled timber, or liquor; or
(v) harbouring persons engaged in smuggling of timber or liquor, or abetting the smuggling of timber or liquor; or
(b) if satisfied with respect to such person who is-
(i) a foreigner within the meaning of the Foreigners Act, 1946; or
(ii) a person residing in the area of the Union territory of Jammu and Kashmir under the occupation of Pakistan,
that, with a view to regulating his continued presence in the Union territory of Jammu and Kashmir or with a view to making arrangements for his expulsion from the Union territory of Jammu and Kashmir, it is necessary so to do, make an order directing that such person be detained.
(2) Any of the following officers, namely-
(i) Divisional Commissioners;
(ii) District Magistrates,
may, if satisfied as provided in clause (a) or (a-1) of sub-section (1), exercise the powers conferred by that sub-section.
(3) For the purposes of sub-section (1)-
(a) omitted;
(b) "acting in any manner prejudicial to the maintenance of public order" means-
(i) promoting, propagating or attempting to create feelings of enmity, hatred or disharmony on grounds of religion, race, caste, community or region;
(ii) making preparations for using, attempting to use, using, instigating, inciting, provoking or otherwise abetting the use of force where such conduct disturbs or is likely to disturb public order;
(iii) attempting to commit, committing, instigating, inciting, provoking or otherwise abetting the commission of mischief within the meaning of section 425 of the Indian Penal Code (45 of 1860), where such mischief disturbs or is likely to disturb public order;
(iv) attempting to commit, committing, instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death, imprisonment for life, or imprisonment for a term extending to seven years or more, where such offence disturbs or is likely to disturb public order;
(c) "smuggling", in relation to timber or liquor, means possessing or carrying illicit timber or liquor and includes any act which renders the timber or liquor liable to confiscation under the applicable forest or excise law;
(d) "timber" means timber of Fir, Kail, Chir or Deodar tree, whether in logs or cut into pieces, but does not include firewood;
(e) "liquor" includes all alcoholic beverages, including beer;
(f) "person" shall not include a citizen of India who has not attained the age of eighteen years for being detained under clauses (a) and (a-1).
(4) When an order is made under this section by an officer mentioned in sub-section (2), the officer shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as, in the officer's opinion, have a bearing on the matter. No such order shall remain in force for more than twelve days after it is made unless, in the meantime, it has been approved by the Government.
Section 9 - Execution of detention orders
A detention order may be executed at any place in the manner provided for
the execution of warrants of arrest under the Code.
Section 10 - Power to regulate place and conditions of detention
Any person in respect of whom a detention order has been made under section
8 shall be liable -
(a)to be detained in such place and under such conditions including
conditions as to the maintenance of discipline and punishment for breaches
of discipline as the Government may, by general or, special order, specify
and,
(b)to be removed from one place of detention to another place of detention
in the Union territory of Jammu and Kashmir by order of the Government.
Section 11 - Detention orders not to be invalid or inoperative, on certain grounds
No detention order shall be invalid or inoperative merely on the ground -
(a)that the person to be detained thereunder is outside the limits of the
territorial jurisdiction of the officer making the order; or
(b)that the place of detention of such person is outside the said limits.
Section 12 - Powers in relation to absconding persons
If the Government, or an officer specified in sub-section (2) of section 8,
as the case may be, has reason to believe that a person in respect of whom a
detention order has been made has absconded or is concealing himself so that
order cannot be executed, the Government or the officer may -
(a)make a report in writing of the fact to a Magistrate of the first class
having jurisdiction in the place where the said person ordinarily resides,
and thereupon the provisions of sections 87, 88 and 89 of the Code shall
apply in respect of the said person and his property as if the order
directing that be detained were a warrant issued by the Magistrate
(b)by notified order direct the said person to appear before such officer,
at such place and within such period as may be specified in the order, and
if the person fails to comply with such direction, he shall, unless he
proves that it was not possible for him to comply therewith and that he had
within the period specified in the order, informed the officer mentioned in
the order of the reason which rendered compliance therewith impossible and
of his whereabouts, be punishable with imprisonment for a term which may
extend to one year or with fine or with both.
Section 13 - Grounds of order of detention to be disclosed to persons affected by the order
(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and, in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to the person, in a language understandable to the person, the grounds on which the order has been made, and shall afford the earliest opportunity of making a representation against the order to the Government.
(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
Section 14 - Constitution of Advisory Board
(1) The Government shall, whenever necessary, constitute an Advisory Board for the purposes of this Act.
(2) The Board shall consist of a Chairman, who is or has been a Judge of the High Court, and two other members who are, have been, or are qualified to be appointed as Judges of the High Court.
(3) The Chairman and the other members of the Board shall be appointed by the Government on the recommendations of a Search-cum-Selection Committee consisting of:
- Chief Secretary - Chairman;
- Administrative Secretary, Home Department - Member;
- Administrative Secretary, Department of Law, Justice and Parliamentary Affairs - Member.
Provided that no sitting Judge of the High Court or sitting District and Sessions Judge shall be appointed as Chairman or member of the Board except in consultation with the Chief Justice of the High Court.
(4) The Chairman and members of the Board shall hold office for a period of three years, extendable for a further period of two years.
Section 15 - Reference to Advisory Board
In every case where a detention order has been made under this Act, the
Government shall, within four weeks from the date of detention order, place
before the Advisory Board constituted by it under section 14, the grounds on
which the order has been made, the representation, if any, made by the
person affected by the order and in case where the order as been made by an
officer, also the report by such officer under sub-section (4) of section 8.
Section 16 - Procedure of Advisory Board
(1)The Advisory Board shall, after considering the material placed before it
and, after calling for such further information as it may deem necessary
from the Government or from the person concerned and if in any particular
case it considers it essential to do so or, if the person concerned desires
to be heard, after hearing him in person, submit its report to the
Government within eight weeks from the date of detention.
(2)Notwithstanding anything contained in sub-section (1), the Board may, if
the person detained so demands, at any time before submitting its report,
after affording an opportunity to the person detained and the Government or
the officer, as the case may be, of being heard, determine whether the
disclosure of facts, not disclosed under sub-section (2) of section 13 to
the person detained, is or is not against public interest. Such finding of
the Board shall be binding on the Government.
(3)The report of the Advisory Board shall specify in a separate part thereof
the opinion of the Advisory Board as to whether or not there is sufficient
cause for the detention of the person concerned.
(4)When there is a difference of opinion among the members forming the
Advisory Board, the opinion of the majority of such members shall be deemed
to be the opinion of the Board.
(5)Nothing in this section shall entitle any person against whom a detention
order has been made to appear by any legal practitioner in any matter
connected with the reference to the Advisory Board and the proceedings of
the Advisory Board and its report, excepting that part of the report in
which the opinion of the Advisory Board is specified, shall be confidential.
Section 17 - Action upon the report of Advisory Board
(1)In any case where the Advisory Board has reported that there is in its
opinion sufficient cause for the detention of a person, the Government may
confirm the detention order and continue the detention of the person
concerned for such period as it thinks fit.
(2)In any case where the Advisory Board has reported that there is, in its
opinion, no sufficient cause for the detention of the person concerned, the
Government shall revoke the detention order and cause the person to be
released forthwith.
Section 18 - Maximum period of detention
(1) The maximum period for which any person may be detained in pursuance of a detention order confirmed under section 17 shall be-
(a) three months in the first instance, which may be extended up to twelve months from the date of detention, in the case of persons acting in any manner prejudicial to the maintenance of public order;
(a-1) twelve months from the date of detention in the case of persons indulging in smuggling of timber; and
(b) six months in the first instance, which may be extended up to two years from the date of detention, in the case of persons acting in any manner prejudicial to the security of the Union territory of Jammu and Kashmir.
(2) Nothing contained in this section shall affect the powers of the Government to revoke or modify a detention order at any earlier time, or to extend the period of detention of a foreigner where expulsion from the Union territory of Jammu and Kashmir has not been possible.
Section 19 - Revocation of detention orders
(1)Without prejudice to the provisions of section 21 of the General
Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or
modified by the Government, notwithstanding that the order has been made by
any officer mentioned in sub- section (2) of section 8.
(2)There shall he no bar to making of a fresh order of detention against a
person on the same facts as an earlier order of detention made against such
person in any case where -
(i)the earlier order of detention or its continuance is not legal on account
of any technical defect or
(ii)the earlier order of detention has been revoked by reason of any
apprehension, or for avoiding any challenge that such order or its
continuance is not legal on account of any technical defect
Provided that in computing the maximum period for which a person against
whom such fresh order of detention has been issued may be detained, the
period during which such person was under detention under the earlier order
of detention shall be excluded.
Section 20 - Temporary release of persons detained
(1)The Government may, at any time, order that a person detained in
pursuance of detention order may be released for any specified period either
without conditions or upon such conditions specified in the direction as
that person accepts and may, at any time, cancel his release.
(2)In directing the release of any person under sub-section (1), the
Government may require him to enter into a bond with or without sureties for
the due observance of the conditions specified in the direction.
(3)Any person released under sub-section (1), shall surrender himself at the
time and place and to the authority, specified in the order directing his
release or cancelling his release as the case may be.
(4)If any person fails without sufficient cause to surrender himself in the
manner specified in sub-section (3) be shall be punishable with imprisonment
for a term which may extend to two years or with fine, or with both.
(5)If any person released under subsection (1) fails to fulfil any of the
conditions imposed upon him under the said sub-section or in. the bond
entered into by him, the bond shall be declared to be forfeited and any
person bound thereby shall be liable to the penalty thereof.
(6)The period of release shall not count towards the total period of
detention undergone by the person released under this section.
Chapter V Miscellaneous
Section 21 - Cognizance of offences under this Act
(1)No Court shall take cognizance of any offence under this Act except on a
report in writing made by a public servant.
(2)Notwithstanding anything contained in the Second Schedule to the Code,
offences under this Act shall be cognizable and non-bailable.
Section 22 of Jammu and Kashmir Public Safety Act, 1978 - Protection of action taken under this Act
No suit, prosecution or any other legal proceeding shall lie against any
person for anything done or intended to be done in good faith in pursuance
of the provisions of this Act.
Section 23 of Jammu and Kashmir Public Safety Act, 1978 - Power to make rules
The Government may, by notification, make such rules consistent with the
provisions of this Act, as may be necessary for carrying out the objects of
this Act.
Section 24 of Jammu and Kashmir Public Safety Act, 1978 - Repeal and Saving
(1)The Jammu and Kashmir Public Safety Ordinance, 1977 is hereby repealed.
(2)Notwithstanding such repeal, anything done or any action taken (including
any rule or order made) under the said Ordinance shall, so far as consistent
with the provisions of this Act, be deemed to have been done or taken under
the corresponding provisions of this Act.